Defendant and appellant, Benjamin James Boatman, shot his girlfriend, Rebecca Marth, in the face, killing her. Defendant said the shooting was an accident. At trial, he argued that although he was criminally negligent, he did not commit murder. A jury convicted him of first degree murder (Pen. Code, § 187 subd. (a))[1] and possession of marijuana for sale (Health and Saf. Code, § 11359). The jury also found true two enhancement allegations that defendant personally and intentionally discharged a firearm that caused great bodily injury or death (Pen. Code, § 12022.53, subd. (d)) and the offenses were committed while defendant was released from custody pending trial on another felony offense (Pen. Code, § 12022.1).

Defendant was sentenced to an indeterminate term of 25 years to life on the murder conviction plus an additional 25 years to life for the firearm enhancement. In addition, the court sentenced defendant to a determinate term of three years on the possession of marijuana conviction to be served concurrent to the indeterminate sentence. The court imposed, and did not stay, a two-year consecutive term for the on-bail enhancement.

In the published portion of our opinion, we address defendant’s contention that the evidence is insufficient to support the conviction for first degree murder. Because we conclude that there is substantial evidence that defendant committed murder, but insufficient evidence to support the first degree murder elements of premeditation and deliberation, we will reduce the murder conviction to second degree murder. We will address other contentions in the unpublished portion of the opinion.

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II. SUMMARY OF FACTS

At approximately 3:30 a.m. on March 18, 2010, defendant was released from jail on bail. He walked home, where he lived with his father (Jim), a sister (Hanna), an older brother (Brandon), and a younger brother (Brenton).[2] Brandon’s girlfriend, Victoria Williams, was also staying there at that time.

After talking with Brenton for awhile, defendant and Brenton drove to Marth’s house, picked her up, and returned home. Defendant had been dating Marth for about one year and, he testified, was in love with her. However, defendant also had an ex-fiancée and was conflicted about whom he wanted to be with.

Around 7:05 a.m., Officer Eric Hibbard responded to a report of a shooting at defendant’s house. When he arrived, he saw Brenton leaning up against the fender of a white Cadillac holding Marth in his arms. Marth had been shot in the face. Shortly after Officer Hibbard placed Marth on the ground, defendant came running out of the house with blood on his clothes and face. Defendant told Officer Gregory Hayden to “[c]all the ambulance for my girlfriend.”

With both defendant and Brenton detained, Officer Hibbard and two other officers conducted a safety sweep of the house. Inside, the officers found Brandon, Williams, and Hanna. Upon entering the bedroom where Marth had been shot, Officer Hibbard saw bloodstains on the bed and pillow. He also saw some marijuana and marijuana paraphernalia in the room. A trail of blood led Officer Hibbard from the bedroom to the kitchen. Officer Hibbard saw a black revolver on the kitchen floor. Both the floor and revolver appeared to be wet with water. The revolver contained five live.38-caliber rounds, as well as one fired round. During a subsequent search of the room where Marth was shot, a box containing a semiautomatic handgun, a box of.38-caliber bullets, and a duffel bag containing a sawed-off shotgun and a box of shotgun shells were found.

Brandon’s bedroom shares a wall with the room in which Marth was shot. On the day of the shooting, Williams (who was in Brandon’s room) told an investigating officer that she was awoken by a “[l]oud screaming argument between a guy and a girl for at least three minutes.” She said she did not know where the yelling was coming from and that she could not tell what the “[l]oud screaming” was about. At trial, Williams did not remember characterizing the sounds she heard as “loud screaming, ” and said she was awoken by “loud talking.” A couple of minutes after hearing the “loud talking, ” Williams

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heard a gunshot. Immediately afterward, Williams heard a commotion and screaming; “it seemed like someone was panicking, like yelling or screaming like out of fear.”

Defendant was taken to the police station by a Riverside police officer. On the way to the police station, defendant asked the officer if he knew if Marth was okay. Defendant said: “I can’t lose her. I would do anything for her. How is someone supposed to go on with their life when they see something like that? We were just going to watch a movie.” Defendant was crying with his head down for most of the trip.

Defendant was interviewed by two homicide detectives. He gave different versions of what had happened that day and admitted at trial that he lied to the officers. In the first version, defendant claimed that Marth had accidentally shot herself. He said he was showing her a gun he had recently purchased; he did not tell her it was loaded; and as she was playing around with it, she accidentally shot herself.

In defendant’s second version, he said he shot Marth, but claimed the shooting was accidental and that he did not think the gun was loaded. He explained that they were sitting on the couch; Marth pointed the gun at him, he pushed the gun away, and she pointed it at him again; he then took the gun, pointed it at her, and accidentally shot her.

In the third version, defendant said he knew the gun was loaded. He described the events this way: “She pointed it at me. I slapped it away. She pointed it at me. I slapped it away. We both knew it was loaded. And then I went like that and I cocked back the hammer just jokingly and it slipped, pow.” He later added: “I pulled it back.... [¶]... [¶]... and it slipped. [¶]... [¶]... Like I didn’t get to pull it all the way back.” In this version, defendant claimed that his finger was not on the trigger. At trial, this version was placed in doubt by a criminalist with an expertise in firearms who testified that, because of the multiple safeties on the gun, the gun could not be fired by pulling the hammer back and releasing it before it is fully cocked.

Defendant testified at trial. He stated that after a few restless nights in jail, he was released on bail around 3:30 a.m. and walked home. Along the way, he sent a text message to Marth to tell her he was going to come get her. He arrived at his house around 5:00 a.m. He and Brenton picked up Marth around 5:30 that morning and returned to their house. Defendant and Marth were happy to see each other.

After the three returned to defendant’s house, they planned to smoke a “blunt”—a cigarillo in which the tobacco has been removed and replaced

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with marijuana—and watch a movie. After showering, defendant took some Xanax and Norcos pills. Defendant said that these pills typically make him feel drunk and euphoric and that on the day in question the drugs made him disoriented.[3]

Defendant and Marth were in a bedroom that had been converted from a back patio. Defendant went to his safe, which contained marijuana and money, and began weighing the marijuana and counting the money. Marth said, “[h]ey, baby.” Defendant turned around and saw Marth pointing a gun at him. Marth had apparently retrieved the gun from underneath defendant’s pillow. Defendant was not worried because he trusted Marth. He slapped the gun away and continued to weigh the marijuana.

At this point, a mosquito landed on Marth, causing her to “scream[] a little bit.” She “jumped up, started waving her hands, doing a whole bunch of girly stuff....” In order to tease her, defendant “grabbed the mosquito, and... brought it closer to her, and she got even more upset.” To make up for the teasing, defendant gave Marth a hug and a kiss, then went back to weighing his marijuana.

When defendant turned around, Marth was sitting on the edge of the bed pointing the gun at him again. The bed did not have a frame and was low on the floor. Defendant, who had just finished putting the marijuana back into the safe on the floor, was squatting and about “eye to eye” with Marth. He took the gun away from Marth and pointed it at her. He knew the gun was loaded when he received it and it “had to be loaded because [he] didn’t take the bullets out.” He cocked the hammer back, but did not intend to threaten or shoot her. He was “[j]ust kind of being stupid[.]” Defendant then described what happened next:

“[DEFENDANT:] She slapped the gun, and as soon as she slapped the gun, the gun went off. I almost dropped it. I tried to grab hold of it. Still the gun didn’t drop. As soon as I squeezed it, it went off.

“Q. Okay. Why are you squeezing it?

“A. I didn’t want to drop it. I didn’t want anything to happen. I guess just a reaction.

“Q. Okay.

“A. You drop something; you try not to drop it.

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“Q. Did you sit there and think this through step by step or was it kind of more an instinctive reaction?

“A. It just happened so quick. It just happened. I didn’t think about it at all.”

Immediately after the shot, defendant told Brenton “to call the cops, ” which he did. Defendant tried to give Marth mouth-to-mouth resuscitation. When Marth told defendant she could not breathe, defendant and Brenton took her outside to the driveway in front of the house “to get her help.”

Defendant went back into the house to get his keys. From inside the house, he heard sirens and panicked. Defendant grabbed the gun and rinsed it off in an attempt to wash off the fingerprints. He tossed the gun into the bottom of a kitchen cabinet. He then ran outside where he was met by police officers.

A recording of Brenton’s 911 call was played to the jury. Brenton lied to the 911 operator, telling her his name was “Paul” and that he did not know who had shot Marth. Defendant can be heard in the background of the telephone call crying and repeatedly saying things like, “[n]oooo, ” “[b]aby, ” and “[b]aby are you alive, baby....”

A forensic pathologist estimated that the gun was fired roughly 12 inches from Marth’s face. She arrived at this estimate based on evidence of stippling, “a phenomenon where some of the gunpowder comes out of the gun and actually tattoos and burns the skin.” The doctor also opined on the trajectory of the bullet: “Essentially the projectile entered just to the left side of her nose. It was recovered in the back portion of her neck a little bit to the right. And so the trajectory would have been front to back, slightly left to right, and slightly downward.”

Marth’s best friend, Heather Hughes, testified that she and Marth had exchanged text messages in the hours before the shooting. A text sent at 10:29 p.m. on March 17, 2010 (the night before defendant was released from jail) read: “Going to sleep soi [sic] can wake up when [defendant] calls.” At 4:24 a.m. on March 18, 2010, Marth
texted: “[Defendant’]s out.” Two minutes later she sent: “I alrea[d]y fuckin wish he was locked back up.
. . [O]mg [you] have no clue.” At 7:02 a.m., Marth wrote: “Just were [sic] fighting...with him right now.”

III. DISCUSSION

A. Sufficiency of the Evidence of First Degree Murder

Defendant contends the evidence was insufficient to find him guilty of first degree murder. We agree. Although the evidence is sufficient for reasonable

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jurors to have found that defendant killed Marth with malice aforethought, there is insufficient evidence to support the finding that the killing occurred with premeditation and deliberation.

1. Standard of Review

A state court conviction that is not supported by sufficient evidence violates the due process guarantees of the federal and California Constitutions, and is therefore invalid. (People v. Rowland (1992) 4 Cal.4th 238, 269 [14 Cal.Rptr.2d 377, 841 P.2d 897).) In determining whether a criminal conviction is supported by sufficient evidence for purposes of federal due process, a reviewing court must “determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 318 [61 L.Ed.2d 560, 99 S.Ct. 2781], fn. omitted.) In Jackson, the Supreme Court explained that “this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.” (Id. at pp. 318-319, fn. omitted.)

The standard under our state Constitution is “identical.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 87 [17 Cal.Rptr.3d 710, 96 P.3d 30]'.) As our state Supreme Court has explained, we “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738].) Substantial evidence is evidence that “maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.” (People v. Conner (1983) 34 Cal.3d 141, 149 [193 Cal.Rptr. 148, 666 P.2d 5].) The “whole record” includes “the entire picture of the defendant pet before the jury” and is not limited “to isolated bits of evidence selected by the respondent.” (Johnson, at p. 577.) This standard is the same regardless of whether the People primarily rely on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932 [251 Cal.Rptr. 467, 760 P.2d 996].)

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2. Background Principles

Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Malice may be either express or implied. Express malice exists when there is a deliberate intention unlawfully to take away the life of a fellow creature. (§ 188.) It is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant heart. (§ 188.) This statutory definition of implied malice “is quite vague” and “‘has never proved of much assistance in defining the concept in concrete terms.’ [Citation.]” (People v. Chun (2009) 45 Cal.4th 1172, 1181 [91 Cal.Rptr.3d 106, 203 P.3d 425].) Courts have interpreted the statutory language to mean that malice is implied “when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.” (People v. Cook (2006) 39 Cal.4th 566, 596 [47 Cal.Rptr.3d 22, 139 P.3d 492].)

Here, defendant concedes that the evidence, viewed favorably to the prosecution, is sufficient to support a jury’s finding of implied malice. We agree. Defendant told interviewing officers he knew the gun was loaded and intentionally cocked the hammer back, albeit “jokingly”; the hammer slipped, causing the gun to fire and kill Marth. The jury could have easily concluded that pointing a loaded gun at someone and pulling the hammer back is an intentional act, the natural consequences of which are dangerous to human life, and that defendant deliberately did so with knowledge of such danger and with conscious disregard for Marth’s life, even if, as defendant said, “it was just all in play.” There is thus sufficient evidence to establish that defendant acted with malice aforethought and committed murder.

There are two degrees of murder. Section 189 defines first degree murder as “murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.”

light of the phrase’s placement among the specifically enumerated instances of a killing perpetrated, among other ways, during arson, rape, robbery, burglary, or mayhem. (Id. at p. 899.) Applying the ejusdem generis rule of statutory construction, the court stated: “By conjoining the words ‘willful, deliberate, and premeditated, ’ in its definition and limitation of the character of killings falling within murder of the first degree the Legislature apparently emphasized its intention to require as an element of such crime substantially more reflection than may be involved in the mere formation of a specific intent to kill.” (Id. at p. 900, italics added.)

In People v. Bender (1945) 27 Cal.2d 164 [163 P.2d 8], the Supreme Court explained the need to distinguish deliberation and premeditation from malice aforethought. Malice aforethought is “an essential element of the crime of murder whether it be of the first degree or of the second degree.... [¶]... [¶]... [and] is not synonymous with the elements of deliberation and premeditation....” (Id. at p. 180.) “Obviously, if malice aforethought necessarily included or presupposed a deliberate and premeditated intent[, ] then all murder would be of the first degree because any homicide, to constitute murder at all, must be an unlawful killing with malice aforethought; and the Legislature would be guilty of an utterly meaningless classification of murder into two degrees, with no field in which the second could operate. Likewise it is obvious that the mere intent to kill is not the equivalent of a deliberate and premeditated intent to kill.” (Id. at p. 181.)

Deliberation, the Bender court stated, “‘means careful consideration and examination of the reasons for and against a choice or measure.’ [Citation.]” (People v. Bender, supra, 27 Cal.2d at p. 183.) Premeditation “means ‘To think on, and revolve in the mind, beforehand; to contrive and design previously.’ [Citation.]” (Ibid.) Relying on the Thomas court’s emphasis on reflection, the court concluded that “‘[t]he true test is not the duration of time as much as it is the extent of the reflection.’” (People v. Bender, supra, at p. 185, quoting People v. Thomas, supra, 25 Cal.2d at p. 900.)

These principles underpin more recent statements of premeditation and deliberation. “The very definition of ‘premeditation’ encompasses the idea that a defendant thought about or considered the act beforehand.” (People v. Pearson (2013) 56 Cal.4th 393, 443 [154 Cal.Rptr.3d 541, 297 P.3d 793].) "Deliberate” means “‘“‘formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.’ [Citation.]” [Citation.]’” (People v. Houston (2012) 54 Cal.4th 1186, 1216 [144 Cal.Rptr.3d 716, 281 P.3d 799].) Thus, “‘[a]n intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.’” (People v. Pearson, supra, at p. 443.)

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Courts have also emphasized that “‘“[t]he process of premeditation and deliberation does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....’ [Citations.]” [Citation.]’” (People v. Houston, supra, at p. 1216.) Judicial reliance on this language, however, has led to criticism that courts have “collapsed any meaningful distinction between first and second degree murder.” (People v. Solomon (2010) 49 Cal.4th 792, 812 [112 Cal.Rptr.3d 244, 234 P.3d 501], citing Mounts, Premeditation and Deliberation in California: Returning to a Distinction Without a Difference (2002) 36 U.S.F. L.Rev. 261, 327-328.) In response, our state Supreme Court reaffirmed the significance of “preexisting reflection, of any duration” to distinguish first degree murder (based on premeditation and deliberation) from second degree murder. (People v. Solomon, supra, at p. 813; accord, People v. Houston, supra, 54 Cal.4th at p. 1217.)

Here, the only direct evidence of defendant’s mental state at the time of the shooting is defendant’s statements to investigators and his testimony at trial. Although his statements regarding the shooting were inconsistent in significant respects, there is nothing in any of his statements to indicate that he considered shooting Marth beforehand or carefully weighed considerations for and against killing her. The evidence of such premeditation and deliberation, if any, was circumstantial.

The use of circumstantial evidence in proving first degree murder was discussed in People v. Anderson (1968) 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942] (Anderson). The court stated: “Given the presumption that an unjustified killing of a human being constitutes murder of the second, rather than of the first, degree, and the clear legislative intention to differentiate between first and second degree murder, [a reviewing court] must determine in any case of circumstantial evidence whether the proof is such as will furnish a reasonable foundation for an inference of premeditation and deliberation [citation] or whether it ‘leaves only to conjecture and surmise the conclusion that defendant either arrived at or carried out the intention to kill as the result of a concurrence of deliberation and premeditation.’” (Id. at p. 25.)

An inference is a “conclusion reached by considering other facts and deducing a logical consequence from them.” (Black’s Law Dict. (8th ed. 2004) p. 793, col. 2.) “The strength of an inference may vary widely. In some circumstances, the preliminary facts may virtually compel the conclusion. In other circumstances, the preliminary facts may minimally support the conclusion. But to constitute an inference, the conclusion must to some degree reasonably and logically follow from the preliminary facts. If, upon proof of

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the preliminary facts, the conclusion is mere guesswork, then we refer to it by such words as speculation, conjecture, surmise, suspicion, and the like; and it cannot rise to the dignity of an inference.” (People v. Massie (2006) 142 Cal.App.4th 365, 374 [48 Cal.Rptr.3d 304].)

The defendant in this case gave multiple false versions of how Marth was shot. The question of whether a defendant’s false denials of wrongdoing can support an inference that he committed the charged crimes was recently addressed in People v. Velazquez (2011) 201 Cal.App.4th 219 [133 Cal.Rptr.3d 684]. In rejecting such an inference, the Velazquez court stated: “The prosecution bears the burden to prove each element of the crimes charged. [Citation.] That burden is not met through mere disbelief of defendant’s denial that he committed the crimes. ‘A reasonable inference “‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.’” [Citation.] It must logically flow from other facts established in the action.’ [Citations.] Disbelief of defendant’s testimony, without more, does not constitute ‘other facts’ from which logically flows the conclusion, beyond a reasonable doubt, that defendant did that which he denied doing.” (Id. at p. 231.)

3. Analysis

The Anderson court provided guidelines “for the kind of evidence which is sufficient to sustain a finding of premeditation and deliberation." (Anderson, supra, 70 Cal.2d at p. 26.) Such evidence “falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2). [¶] Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).” (Anderson, supra, 70 Cal.2d at pp. 26-27.)

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To illustrate planning evidence, Anderson discussed the case of People v. Hillery (1965) 62 Cal.2d 692 [44 Cal.Rptr. 30, 401 P.2d 382], in which “the defendant’s surreptitious conduct[, ] subjection of his victim to his complete control, and carrying off of his victim to a place where others were unlikely to intrude, can be described as ‘planning’ activity directly related to the killing.” (Anderson, supra, 70 Cal.2d at p. 27.) In another case, planning evidence was found when the defendant left the victims to retrieve a rifle from his car and, after killing one victim, manually loaded a second shot into the gun’s chamber to kill the second victim. (People v. Thomas (1992) 2 Cal.4th 489, 517 [7 Cal.Rptr.2d 199, 828 P.2d 101].) There was also planning evidence in People v. Young (2005) 34 Cal.4th 1149 [24 Cal.Rptr.3d 112, 105 P.3d 487], where the defendant, after being denied entry to a house, crashed through a living room window armed with a gun before killing a resident inside the house. From such evidence, the jury could infer that the “defendant ‘considered the possibility of murder in advance’....” (Id. at p. 1183.)

The present case lacks any planning evidence whatsoever. Defendant, along with his younger brother, picked up Marth from her house and drove back to his home, not to a remote or isolated location. The house was occupied by four other people who could identify him. There is no evidence that defendant left the room or the house to get a gun, or that he even moved from his squatting position on the floor. Indeed, the only evidence regarding his possession of the gun was that he took it away from Marth just prior to the shooting. Defendant testified that he did not intend to shoot Marth. Although the jury could refuse to believe such testimony, such disbelief cannot support an inference “that defendant did that which he denied doing.” (People v. Velazquez, supra, 201 Cal.App.4th at p. 231.)

Defendant’s behavior following the shooting is of someone horrified and distraught about what he had done, not someone who had just fulfilled a preconceived plan. Immediately after the fatal shot, defendant tried to resuscitate Marth and directed his brother to “call the cops.” Defendant could be heard crying in the background during the 911 call. He asked the first officer who arrived to call an ambulance and, when being taken to the police station, he cried and asked rhetorically how someone could “go on with their life when they see something like that.” The evidence not only fails to support an inference of a plan to kill Marth, but strongly suggests a lack of a plan to kill. Even viewed in the light most favorable to the prosecution, there is no evidence of planning.

There is little or no relevant motive evidence here. The Attorney General points to Marth’s text messages to Hughes and asserts that the jury may have inferred that “[defendant] was in a bad mood after being released from

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custody and he was angry with [Marth].” Other than the references to the text messages, the Attorney General does not cite to evidence defendant was in a “bad mood” or “angry” with Marth. Even if such a mood or anger can be reasonably inferred from Marth’s texts and could suggest the intent to kill, it is, at most, weak evidence of a motive suggesting premeditation and deliberation. The second Anderson factor refers not merely to a motive to kill, but to the kind of motive that “would in turn support an inference that the killing was the result of a ‘pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed.’” (Anderson, supra, 70 Cal.2d at p. 27, italics added.) The text messages and the evidence of a loud screaming argument, which the Attorney General relies on, do not suggest this kind of motive. To the contrary, any evidence of defendant’s “bad mood” or “anger with the victim” indicates a motive to kill based on “‘unconsidered or rash impulse hastily executed, ’” not the sort of “‘pre-existing reflection’” and “‘careful thought and weighing of considerations’” required to find premeditation and deliberation. (Ibid.)

As for the manner of killing evidence, defendant shot Marth in the face. As noted above, this manner of killing supports the finding of malice necessary to convict defendant of murder. To support first degree murder, however, the prosecution must show more than an intent to kill. (People v. Koontz (2002) 27 Cal.4th 1041, 1080 [119 Cal.Rptr.2d 859, 46 P.3d 335] (Koontz).) It must still establish that the gunshot to the face was pursuant to a “‘preconceived design’ to take his victim’s life....” (Anderson, supra, 70 Cal.2d at p. 27.)

Even when manner of killing evidence is strong, cases in which findings of premeditation and deliberation are upheld typically involve planning and motive evidence as well. For example, in People v. Cruz (1980) 26 Cal.3d 233 [162 Cal.Rptr. 1, 605 P.2d 830], the defendant killed one of his victims, his wife, by crushing her skull with a pipe and shooting her in the face with a shotgun. (Id. at pp. 240, 245.) The court held that the finding of premeditation and deliberation was supported by “all three types of evidence specified in Anderson” (id. at p. 245); the defendant resented the victims (motive), snuck out of his house to secure a pipe and load a shotgun (planning), and returned to the house to kill one of his victims by crushing her skull with the pipe followed by a shotgun blast to the face (manner of killing). In People v. Mendoza (2011) 52 Cal.4th 1056 [132 Cal.Rptr.3d 808, 263 P.3d 1], the defendant shot a police officer in the face, killing him. (Id. at p. 1063.) In upholding the first degree murder conviction, the court relied not only on evidence of the manner of killing, but also on evidence that the defendant “devised a plan to kill [the officer] once the officer indicated he would conduct a weapons search, ” and had a motive for the killing—to avoid arrest and parole revocation. (Id. at p. 1070.)

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Here, as discussed above, there is no evidence of any plan to kill Marth and little or no meaningful evidence of a motive to kill her.

Cases that have found sufficient evidence of premeditation and deliberation in the absence of planning or motive evidence are those in which “[t]he manner of the killing clearly suggests an execution-style murder.” (People v. Hawkins (1995) 10 Cal.4th 920, 956,
[42 Cal.Rptr.2d 636, 897 P.2d 574], overruled on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110;
[96 Cal.Rptr.2d 441, 999 P.2d 666] see also People v. Bloyd (1987) 43
Cal.3d 333, 348 [233 Cal.Rptr. 368, 729 P.2d 802] In Hawkins, the victim was found in a ditch in an open field with two gunshot wounds: one in the back of the neck and one in the back of the head near the base of the skull. (People v. Hawkins, supra, 10 Cal.4th at p. 956.) There was also evidence that the victim was crouching or kneeling at the time. (Ibid.) The court concluded: “In sum, although evidence of planning and motive was indeed minimal if not totally absent in the present case, we conclude that the manner-of-killing evidence was sufficiently strong to permit a trier of fact to conclude beyond a reasonable doubt that defendant committed the... murder with premeditation and deliberation.” (Id. at p. 957.) In Bloyd, two people were killed; one victim was lying down on her back and another was kneeling. The first victim “died from a pointblank gunshot wound to the head that entered the brain.” (People v.Bloyd, supra, 43 Cal.3d at p. 342.) The bullet in the second victim “went down, back to front, and left to right, through the midportion of the brain, and exited just below the ear lobe on the right side.” (Ibid.) The evidence of “cold and calculated—execution-style killings, ” the court explained, “was very strong evidence of deliberation and premeditation[.]” (Id. at p. 348.)

Here, the Attorney General does not assert that the shooting of Marth was an “execution-style” murder. Nor is there any evidence from which jurors could reasonably infer such a manner of killing. None of the events preceding the shooting or its location suggests an execution. Unlike the shots to the head from behind in Hawkins and Bloyd, defendant and Marth were facing toward each other, and there is no evidence that Marth was crouching or kneeling at the time. Although the gun was only 12 inches away from Marth when fired, the bullet completely missed Marth’s brain; and although the gun still held five live rounds, no second shot was fired. Defendant’s actions immediately afterward—directing Brenton to call 911 and attempting to resuscitate Marth and seek medical aid—are not the actions of an executioner. In short, the manner of killing Marth was not “so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’....” (Anderson, supra, 70 Cal.2d at p. 27.)

With no evidence of planning or motive and a killing that cannot be described as “execution-style, ” the application of the Anderson factors weigh

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heavily in favor of concluding there was insufficient evidence for a reasonable jury to conclude that the killing was the result of premeditation and deliberation.

As the Attorney General points out, the Anderson factors are not exhaustive or exclusive of other considerations. Indeed, our Supreme Court has cautioned that an “‘[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law of murder in any way.’ [Citation.]” (Koontz, supra, 27 Cal.4th at p. 1081.) The question thus remains whether, in light of the whole record, there is substantial evidence from which rational jurors could have found that defendant’s killing of Marth was the result of preexisting thought and the careful weighing of considerations. (See Jackson v. Virginia, supra, 443 U.S. at pp. 318-319; People v. Johnson, supra, 26 Cal.3d at pp. 577-578.)

The Attorney General emphasizes three aspects of the evidence to support premeditation and deliberation. First, the Attorney General argues that defendant did not shoot Marth during the “[l]oud and screaming argument” heard by Williams, but did so only after the screaming ended. This, the Attorney General contends, “reasonably supports the inference that [defendant] had time to consider his actions before [h]e pointed his Taurus pistol at [Marth’s] face and fired from close range.” However, “‘“[t]he true test [of premeditation and deliberation] is not the duration of time as much as it is the extent of the reflection....” [Citations.]’ [Citation.]” (Koontz, supra, 27 Cal.4th at p. 1080.) Thus, the mere fact that a defendant has time to consider his actions is, without more, insufficient to support an inference that the defendant actually premeditated and deliberated. Indeed, if the mere passage of time was enough to infer premeditation and deliberation, then virtually any unlawful killing with malice aforethought would be first degree murder because premeditation and deliberation does not require any extended period of time. (See ibid.) As discussed above, however, premeditation and deliberation is not synonymous with malice aforethought (People v.Bender, supra, 27 Cal.2d at p. 180); it requires “substantially more reflection.” (People v. Thomas, supra, 25 Cal.2d at p. 900.) Clearly, there must be some evidence that the defendant actually engaged in such reflection, and not merely had the time to do so.

For this argument, the Attorney General relies on People v. Harris (2008) 43 Cal.4th 1269 [78 Cal.Rptr.3d 295, 185 P.3d 727]. In that case, a mother worked at a donut shop and took her daughter to work with her. (Id. at p. 1277.)

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The mother tapped at a door to signal the daughter to open it. As the daughter approached the door, defendant was standing at the service window. The daughter attempted to open the door for her mother, but could not. The mother told the daughter to wait on the customer. The daughter took the defendant’s order and began to prepare it. The defendant then attacked and killed the mother with a butcher knife. (Ibid.) The court held that there was sufficient evidence of premeditation and deliberation and explained: “In the time it took for [the daughter] to go from the door to the service window, and to take and prepare defendant’s order, there was ample time for him to deliberate and premeditate before attacking [the mother].” (Id. at p. 1287.)

Contrary to the Attorney General’s suggestion, Harris does not hold that premeditation and deliberation can be inferred whenever the defendant had time to premeditate and deliberate. The facts in Harris indicate that the defendant had a reason to be at the service window (to buy donuts) and left his position at the window to go to the door where he had no reason to be other than to attack the mother. This implies that he made the decision to attack the mother while he was at the service window before walking to the door to carry out his plan. It was not the mere passage of time that was significant, but the fact that the defendant’s actions imply that he made the decision to kill while he was at the service window and then considered the decision as he walked to the door to commit the murder. Here, by contrast, there is no fact analogous to leaving the donut store service window or other evidence that defendant had given any thought or consideration to killing Marth.

Harris was followed in People v. Nelson (2011) 51 Cal.4th 198.
[120 Cal.Rptr.3d 406, 246 P.3d 301] The Nelson court relied on Harris to conclude that the defendant in Nelson “had ample time to premeditate and deliberate” before attempting to shoot his intended victim. (Id. at p. 213.) The court did not hold that having such ample time was itself sufficient to infer premeditation and deliberation. As the court further explained, the defendant “formed an intent to kill and took several steps to achieve that end. He took up a firearm, climbed out of a moving car, sat on the window frame, reached across the roof, braced himself, and aimed at Doe.” (Ibid.) Thus, as in Harris, there was evidence in Nelson that the defendant formed an intent to kill and then took steps—which took “ample time”—before aiming his gun at the intended victim. Here, by contrast, there is no substantial evidence from which the jury could determine the point (if any) when defendant formed the intent to kill or any steps thereafter taken to fulfill that goal.

Next, the Attorney General argues, “[t]he close-range shooting... supports a rational inference by the jury of premeditation and deliberation.” For this argument, the Attorney General cites to People v. Gonzales and Soliz (2011)

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52 Cal.4th 254, [128 Cal.Rptr.3d 417, 256 P.3d 543], People v. Marks (2003) 31 Cal.4th 197,
[2 Cal. Rptr.3d 252, 72 P.3d 1222] and Koontz, supra, 27 Cal.4th at page 1082. These cases are distinguishable from ours in that they all had other types of Anderson evidence in addition to a close-range shooting.

In Gonzales and Soliz, the defendants were members of a Hispanic street gang. (People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 263.) They and others were in a car when they saw two or three African-American men from a rival gang standing in the driveway of a gas station. (Id. at pp. 268-270.) The defendants recognized the men and told the driver of the car to go back to the gas station. (Id. at p. 270.) One of the defendants shot the African-American men. (Id. at p. 269.) When one of the victims started to crawl away, the shooter walked up and shot him again. (Ibid.) One of the victims had been shot from behind while kneeling on the ground with the shooter standing over him; the other had been shot seven times, including two fatal wounds to the head. (Id. at p. 271.) In holding that there was sufficient evidence of premeditation and deliberation, the court stated: “Here, the evidence of motive was that defendants targeted [the victims] for a gang retaliation murder.... This motive evidence supported the inference that defendants, who were armed at the time, had the prospect of retaliation in mind and quickly decided to commit the murders once they identified potential targets. A reasonable inference, therefore, is that defendants formed the intent to commit premeditated and deliberate murder as early as when they asked the driver to turn the car around and return to the gas station to confront [the victims]....” (Id. at p. 295.) As for “manner” evidence, the court stated: “The manner of killing—a close-range shooting without any provocation or evidence of a struggle—additionally supports an inference of premeditation and deliberation.” (Ibid.)

In Marks, the defendant and his girlfriend entered the victim’s taxi without any money to pay for the ride. (People v. Marks, supra, 31 Cal.4th at p. 206.) They arrived at their destination and the defendant asked his girlfriend to exit the taxi. (Ibid.) She went into an alley and then heard a gunshot from where the taxi was parked. (Ibid.) The defendant shot the driver in the face, killing him. (Ibid.) The Supreme Court stated that “[t]he shooting... manifested all three [Anderson] factors. Defendant ordered [his girlfriend] out of the taxi, which supports the inference that he did so to remove her from the scene before he killed. Moreover, if he brought a gun rather than money with which to pay for the taxi ride, it supports the inference that he planned a violent encounter with [the victim]. [Citations.] Defendant was found with seven $1 bills, whereas [the victim] was found with no bills (nor was any money found in the car), which tends to show a robbery motive. Finally, the manner of the

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killing, a close-range shooting without any provocation... or evidence of struggle, likewise demonstrates premeditation and deliberation.” (Id. at p. 230.)

In Koontz, the court summarized the facts as follows: “Defendant, having armed himself in the early morning hours with two concealed and loaded handguns, argued with the victim in the apartment they shared. When the victim sought refuge in [a security guard’s office], located in a different apartment in the complex, defendant pursued him and persisted in the argument.... After [the security guard] unsuccessfully exhorted the two men to resolve their differences... defendant said, ‘All right, I’ll settle it.’ Defendant then entered the office, locked the door and pulled a handgun from the waistband of his pants. After the victim refused defendant’s demand for his car keys, defendant fired a shot at the victim’s abdomen. He then took active steps to prevent [the security guard] from summoning medical care, without which the victim was certain to die.” (Koontz, supra, 27 Cal.4th at pp. 1081-1082.) The court concluded: “Applying the Anderson guidelines, we easily find evidence of planning (defendant’s arming himself and following the victim to the [security guard’s] office), motive (to effectuate a robbery), and a manner of killing indicative of a deliberate intent to kill (firing a shot at a vital area of the body at close range, then preventing the witness from calling an ambulance). These facts suffice to support a verdict of premeditated and deliberate first degree murder.” (Id. at p. 1082.)

Gonzales and Soliz, Marks, and Koontz are easily distinguishable from the present case. In each case cited by the Attorney General, the evidence indicated the defendants decided to confront and kill the victims some time prior to the shooting. In Gonzales and Soliz, the armed defendants turned their car around to confront the victims; the defendant in Marks entered the taxi with a gun without the ability to pay for the cab ride; and the armed defendant in Koontz pursued the victim to the apartment complex security office and announced that he would “settle it.” Such evidence supports reasonable inferences that the killings were planned. Each defendant also had a motive (e.g., gang retaliation or robbery) that suggested the killing was the result of a pre-existing reflection, careful thought, and the weighing of considerations. Significantly, in none of these cases did the Supreme Court indicate that each defendant’s manner of shooting would be sufficient to support the premeditation and deliberation finding in the absence of evidence of planning and motive.

Lastly, the Attorney General argues, defendant’s “act of shooting [Marth] does not bear the characteristics of a rash impulse because he took the time to pull back the hammer, point the pistol at [Marth’s] face, and fire the weapon.” Pulling the hammer back on a loaded gun and pointing it at another

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is certainly evidence of an intentional act performed with conscious disregard for human life, i.e., acting with implied malice.[4] However, the Attorney General provides no authority for the argument that these actions, without more, are sufficient to support a finding of premeditation and deliberation. Although the cocking of a loaded rifle was one factor supporting such a finding in People v. Gonzalez (2012) 54 Cal.4th 643 [142 Cal.Rptr.3d 893, 278 P.3d 1242], there was also uncontroverted evidence of the defendant’s plan to attack the victim by ambush with the loaded rifle and a motive to kill the victim because of a conflict between the victim and the defendant’s brother. (Id. at pp. 663-664.) There is nothing in Gonzalez to suggest that the mere cocking of the loaded rifle would be sufficient to support a finding of premeditation and deliberation.

A first degree murder conviction premised upon premeditation and deliberation requires more than a showing of the intent to kill; it requires evidence from which reasonable jurors can infer that the killing is the result of the defendant’s preexisting thought and reflection. (People v. Solomon, supra, 49 Cal.4th at pp. 812-813; Koontz, supra, 27 Cal.4th at p. 1080.) Here, viewing the evidence in the entire record in the light most favorable to the prosecution, we conclude that there is ample evidence to support the jury’s verdict of murder, but insufficient evidence to support the finding that defendant killed Marth with premeditation and deliberation. We will therefore reduce the conviction to second degree murder. (See People v. Steger (1976) 16 Cal.3d 539, 553 [128 Cal.Rptr. 161, 546 P.2d 665]; § 1260.)

The judgment is modified such that the conviction of first degree murder is reduced to second degree murder and the execution of the on-bail enhancement under section 12022.1, subdivision (b) is stayed pending final resolution of the primary offense. As modified, the judgment is affirmed. On remand, the court shall resentence defendant in light of the modified judgment. Following resentencing, the trial court is directed to prepare a minute order and an amended abstract of judgment to reflect the modification of the sentence and

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to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

Hollenhorst, Acting P. J., and Codrington, J., concurred.

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